Archives for December 2018

Missing your mortgage payment too many times in a row can be cause for serious concern. If you feel you are coming perilously close to losing your home, you should know that help is available. There are several Federal laws affecting foreclosure that you may be able to have recourse to in order to save your home. While nothing is guaranteed, it’s still an excellent idea to gain more information about these laws and how they may be able to assist you in your time of greatest need.

Can Filing for Bankruptcy Help You Save Your Home?

Filing for bankruptcy may not be the first option you think about when looking for ways to save your home. You are most likely dreading the effect that a bankruptcy may have on your credit. It’s certainly not a move you would make unless you were absolutely sure of facing foreclosure. But keep this mind: Filing for bankruptcy will automatically stay any foreclosing action that may have been initiated.

Your Level of Bankruptcy Protection Depends on the Type

Of course, the stay may not be permanent. Whether it is lifted or not will depend on whether the holder of the mortgage has any equity to speak of in the actual property. If you have filed for bankruptcy under Chapter 11, the stay may be lifted either because you don’t really have any equity of your own in the property or because the motion does not allow for adequate protection of any equity that the mortgage holder does have in that property.

Filing a Straight Petition for Bankruptcy is Also Possible

If you have filed under a straight petition for bankruptcy, in the form of a statement in which you ask for the summary discharge of all your debts, your claim may be even more precarious. In this case, the holder of the mortgage will normally be allowed to proceed with foreclosing on your home if it turns out that you definitely have no equity in the property. Even if you do possess some level of is equity, your home could still be sold by the bankruptcy court.

How Can the Soldiers and Sailors Act Help Save Your Property?

If you are currently serving in our nation’s armed forces and received your mortgage before you entered the military, you may be entitled to a special level of protection under the Soldiers and Sailors Relief Act of 1940. Of all the Federal laws affecting foreclosure, this may be the one that proves most useful to you. This special Act allows a service member to set aside the default judgment that immediately precedes the opening of foreclosing proceedings. The onus will then be on the holder of the mortgage to prove that the person who filed the claim is not a currently serving member of the military.

You Will Need to Be Present or Represented at the Hearing

If you are currently are serving in the armed forces, the mortgagor is in the armed services, you will have to be physically present or represented by an attorney at the hearing. This means that certain forms of the foreclosing process, such as point of sale, will not be permitted. It also means that if the court should rule that your ability to pay off your mortgage has been adversely affected by your service in the military, you will be granted an indefinite stay against all foreclosing proceedings while you are currently serving.

Is It Better to File for Bankruptcy or Under the Soldiers and Sailors Act?

You may be wondering which of these two major alternatives is the right one for you to make use of in your time of need. If you are a service member, the Soldiers and Sailors Act may well be your best bet to get the time you need to pay your debts. This is a far better move than filing for bankruptcy. But if you are not a currently serving member of the armed forces, you will obviously not be taken seriously if you file under the Soldiers and Sailors Act. If you have exhausted all of your other resources and bankruptcy is the only way to gain breathing space, then you may as well take the plunge.

Filing for Bankruptcy is Better Than Being Foreclosed On

You can take some solace in reflecting on the fact that filing for bankruptcy is at least superior to being foreclosed on. Although it will certainly do damage to your credit rating, this damage will be nowhere near as permanent as it would be after a foreclosure. Most lenders won’t even consider you for a future home loan if they see that you have been foreclosed on in the past. With bankruptcy, you will at least have a fresh slate to start again from.

It can be hard to remain a home owner in the modern world. There are so many perils to face that can stack up against you when you least expect it. Defaulting on a mortgage payment is every home owner’s nightmare, and for good reason. The thought of interest payments, late fees, and even being foreclosed upon is the stuff of nightmares. On top of it all, it’s far easier to miss a mortgage payment than you may think. A lay off from your job or a serious illness that comes with a high insurance deductible can knock you off your feet. If the worst should occur and you lose your home, what then?

Can Foreclosure Statutory Redemption Laws Help You Regain Your Lost Home?

There may be a chance that you could be able to regain the home you have lost due to the foreclosure process. A special set of foreclosure statutory redemption laws exist in some states. Thanks to these statutory redemption laws, you just might be able to claw back into a position to where you legally regain control of your property after first coming to a compromise with your creditors.

Who do You Have to Deal With in Order to Reclaim Your Property?

What’s the catch? Statutory redemption laws allow the person who was foreclosed on to reclaim their property under one condition. You need to be able to pay the full amount of what your property sold for at the foreclosure sale. You will also need to pay a certain rate of interest, known as statutory rate of interest, to the person who bought the property at the sale. This person will, in almost every case, be the holder of your mortgage or their appointed trustee.

How Does the Statutory Redemption Process Work on Your Behalf?

The statutory redemption process will begin when you make a special demand, which must be made in writing, to the person who purchased your property at the sale. This demand will consist of a special request for a full statement of the monetary amount that will be required from you if you are going to reclaim your property. In other words, you are asking for an invoice that you can then determine whether or not you are able to pay.

After You Receive Your Statement, It’s Up to You to Pay It Off

After the person who bought your house receives this demand, they will have a certain amount of time to send you a fully itemized statement of the amount that is required. The time limit for them to do so will vary according to the state you’re in, but will generally be about 10 days. Once you receive this statement, you can make up your mind as to whether or not you intend to pay the bill and reclaim your home. Depending on state regulations, you may or may not have to foot the bill for any renovations that have been made to the property during the time it was in the hands of the purchaser.

If You Are Not Able to Pay, You Will Forfeit Your Claim

As noted above, once you have received your statement, it’s up to you to pay or not pay it. If you are unwilling or unable to pay off the statement, you will have to forfeit any and all future claims on the property. The person who purchased the home at the sale will then be in possession of the title, as well as all rights and other interests in the property. If you are still living in the home after the sale has been concluded and you have forfeited your claim, you will likely be evicted. In any case, you now have no choice but to vacate the property or face prosecution on trespassing charges.

How Long Do You Have to Use the Statutory Redemption Clause?

Depending on whether or not you live in a state that has a provision for the statutory redemption clause, you may have anywhere from 30 days to a full two years to make use of it. In many states, there are special rules on the statute that limit your ability to have recourse to it. For example, certain states will allow a judge to reduce or even revoke your right to use the statute if it is discovered that you have abandoned the property.

It’s Important to Understand Your Statutory Redemption Rights

Being foreclosed on can be a painful and disorienting experience. It’s important that you fully understand all of the rights that you possess. It’s an excellent idea to meet with an attorney who can help you to understand and make full use of your statutory redemption rights. This is an excellent chance for you to reclaim your property and rebuild your life.

It isn’t as hard as you think to fall behind on your mortgage payments. The loss of a job can put you behind in an instant. You can also just as easily fall victim to an illness or injury that your insurance company refuses to pay out the full amount of coverage on. Not every person – in fact, hardly any person – that falls behind on their mortgage should be looked at as a deadbeat or financial delinquent. Falling behind on your mortgage payments exposes you to a world of headaches, financial and otherwise. If you fall too far, you may be subjected to a series of penalties, including foreclosure.

How Are Foreclosure and Bankruptcy Related?

You may be wondering what your alternatives are if you are warned by your mortgage holder that the foreclosing process is about to begin. As it turns out, there are several that you may consider as a way forward from your present unfortunate situation. In some rare cases, you may be able to come to a compromise solution with the holder of your mortgage. For example, they may agree to a short sale of the property or a modification of the original loan. However, in most cases, they will not be so agreeable.

What you should realize is that it takes time for the foreclosing process to begin. You will normally have two or three months to make back payments before the holder of the mortgage makes up their mind to act against you. During this time, if you cannot make the payments, you can still suggest other alternatives. These may range from an extension on the mortgage to a deed in lieu of foreclosure. If all else fails, you can close the link between foreclosure and bankruptcy by applying for Chapter 13 protection.

You Can Use a Chapter 13 Bankruptcy to Save Your Home

There are certain advantages which you will be entitled to have recourse to if you decide to file for Chapter 13 bankruptcy protection. For example, one of the chief protections afforded by Chapter 13 bankruptcy is the scope that it gives you to set up a schedule for paying off the debt that has accumulated due to defaulting on your mortgage. In most cases, you will even be allowed to propose the exact length of time that you will take for making these repayments. As long as you can commit to such a schedule and manage to observe it to the letter, you will be allowed to keep your property.

Chapter 13 Bankruptcy Can Help Eliminate Second and Third Mortgage Payments

Filing for bankruptcy under Chapter 13 conditions can also help you to phase payments that are due on a second or third mortgage. This type of protection typically allows a bankruptcy court to consider second or third mortgages as a form of unsecured debt. What this means for you is that unsecured debt is a matter of very low priority and will usually not have to be paid back. However, this will only be the case if the first mortgage on your home contains the whole of your property value. If this is so, then the second or third mortgages will have no further value to be secured or collected.

Bankruptcy May Be Your Best Choice to Save Your Home and Your Credit

You should be aware that filing for bankruptcy will certainly have some adverse effects on your credit. However, the damage will not be anywhere near as severe or long lasting as the negative effect that follows after having your home foreclosed on. Not only will being foreclosed on have a ruinous effect on your credit, but you may also still be saddled with the leftover debt.

Bankruptcy May Carry More Advantages Than Disadvantages

Even if filing for bankruptcy doesn’t save your home, you are probably better off having done so. You may no longer have your home, but you will at least be free of mortgage debts and tax liability. You’ll have a huge monkey off your back and will be able to plan for your future. This would not be the case if you simply allow yourself to be foreclosed on without trying to fight the process.

In addition to being in debt, being foreclosed on may mean you may never be able to even consider buying a home in the future. Most mortgage companies will not even consider you a candidate for a new loan if you have been foreclosed upon in the past. Bankruptcy, although it also carries its fair share of disadvantages, will at least allow you to start again with a clean slate. If you are faced with a choice between being foreclosed on or filing for bankruptcy, it may be wise to choose the latter course of action.

The process of foreclosure by power of sale will normally involve the sale of a property by the mortgage holder through some means which does not include the supervision of a court. In this way, it contrasts with foreclosure by judicial sale. This type of foreclosing process is currently in use in 29 states. It is usually had recourse to by a mortgage holder because it offers a quicker and more efficient process by which to claim the property.

Who Benefits From Foreclosure by Power of Sale?

As with most other forms of these proceedings, the sale of the property will first benefit the holder of the mortgage. After their share of the proceeds is received, next in line will be all other parties who claim a lien on the property included in the mortgage. Last comes the person who took out the mortgage. If any proceeds are left after the other parties have been paid, they will receive whatever is left from the sale.

The Power of Sale Clause Needs to Be Written into the Actual Mortgage

The power of the mortgage holder to hold a power of sale proceeding needs to be written into the mortgage itself in order for the proceeding to be legally valid. This means that if the mortgage holder should threaten to hold such a sale without the clause being included, the person who took out the mortgage can challenge them in a court of law. It should also be noted that a power of sale proceeding cannot legally take place if the mortgage itself has been written up in the form of an absolute deed.

A Power of Sale Proceeding Can Still Be Subject to Judicial Review

There are some circumstances under a which a power of sale proceeding can still be subject to full judicial review. These include certain types of situations in which a number of issues or defects in the mortgage need to be resolved. There may also be lien holders and people holding leases on the property whose claims will need to be dealt with and resolved before the final sale of the property is allowed to take place.

Mortgage Holders May Be Barred From Seeking A Deficiency Judgment

In many states, the holder of the mortgage will be legally prohibited from seeking a deficiency judgment. This will be especially the case if the holder decides to sell the property through some other means than the local court system. This means that, although the sale may proceed quicker and more efficiently, the holder of the mortgage may walk away with less of a payoff than they had originally planned on receiving.

A Deed of Trust is Required to Conduct a Point of Sale Foreclosure

In most jurisdictions, the holder of the mortgage will need a deed of trust in order to begin a point of sale proceeding. A deed of trust is used to transfer the property from the holder of the mortgage to a special trustee that they appoint. This trustee will be the one who holds the property on behalf of the mortgage holder until the proceedings begin. When they do, it will be the trustee who holds the actual sale of the property. The trustee will generally be a person whom the mortgage holder has selected specifically for this purpose. They are not obligated to determine if the proceeding is justified.

A Special Relationship Between a Mortgage Holder and Trustee is Required

Point of sale procedures have definite rules when it comes to the relationship of a mortgage holder and their trustee. A deed of trust, as well as the fact that a trustee is supervising and conducting the sale, are the two elements that are required if the holder of the mortgage intends to bid on the property. If these two conditions are not fulfilled, the mortgage holder is barred from doing so. If a point of sale proceeding should occur without one or both of these conditions being fulfilled, the person who took out the mortgage may have a legal right to contest the sale.

All Point of Sale Proceedings Must Be Properly Advertised

All interested parties must be duly notified before a point of sale proceeding can take place. This is generally done by placing an ad in the newspaper. Many states will also require that a notice be given to the person who originally took out the mortgage. There has been some controversy involved at this point of the process. Some courts have ruled that the use of much stricter and more effective notifications may be necessary. The issue has, so far, not been definitively settled.

Being a property owner exposes you to a whole host of responsibilities, including making your payments in a prompt and full manner. It’s never a god idea to default on your mortgage payment. Such an unfortunate occurrence can open the door to the foreclosure process. This process takes many forms, including the sale of your property as supervised by a court of law. This particular form of the process is known as foreclosure by judicial sale.

What Does the Process of Foreclosure by Judicial Sale Involve?

This process begins when you default on too many of your mortgage payments. Foreclosing proceedings under this particular process will involve first the seizure, then the sale, of the property in question under the strict supervision of a court. After the sale has been concluded, the proceeds will go first to the mortgage holder, and then to anyone else who holds a lien on the property. If any proceeds from the sale are left over, they will go to the original property holder. This form of the foreclosing process is available in every state, and is the required form in many of them.

It should be noted that this form requires that all parties in the process be noted so that they can attend the judicial hearing. This is to make sure that there is no dispute over who becomes the rightful holder of the property after the hearing has been concluded. In nearly every case, the eventual “winner” will be the mortgage holder – usually a bank or some other form of lender.

Who are the Necessary Parties in the Foreclosing Process?

There will be a number of people, known as necessary parties, whose presence at the hearing will be required in order for it to proceed as a fully legitimate legal process. These necessary parties will be anyone who acquired an easement, lien, or lease on the property after the original mortgage was taken out on it. These are people whose claims must be satisfied before the foreclosed property is handed over to the mortgage holder.

Who are the Proper Parties in the Foreclosing Process?

There will also be a number of people involved in the case who are known as proper parties. These will be people who are judged to be useful, although not strictly necessary, in order to move the case along as efficiently and fairly as possible. For example, a proper party might be a person who had some sort of interest in the property at a time before the mortgage was executed. These people will not receive any payment from the foreclosing process. They are included in the process so that their relationship to the property – specifically, their lack of any claim to it – is fully clarified.

What is the Proper Procedure in a Judicial Foreclosure?

The judicial foreclosing process will normally begin when a judge or sheriff declares the property available for sale. At this point, the holder of the mortgage is allowed to bid on the property. If there are any lien holders on the property who are not named as a party to the process, the mortgage holder can choose to pay them off by using some of the proceeds from the sale. This will give them clear title to the property.

If there are any other parties with minor claims who were not named in the process, the mortgage holder can pay this junior lien holder an amount of money to buy out their interest in the property. They can also choose the option of re-foreclosing on the original mortgage in order to eliminate the claims of junior lien holder. However, to achieve this goal, they will have to go through a second, completely separate court ordered foreclosing procedure.

If the Sale Doesn’t Pay off the Mortgage, What Then?

If the proceeds from the foreclosing sale do not manage to pay off the debt owed to the mortgage holder, the person who took out the mortgage may have a deficiency judgment brought against them. This means that, if the sale fell short by $2,000, the holder of the mortgage may sue you to recover the extra amount.

However, in many areas, the concept of deficiency is mitigated by “fair value” legislation. This means that the amount of the shortfall will be calculated by comparing the amount of the mortgage against the actual “fair market” value of the property. This could result in a significant lessening of the amount that you owe the holder of the mortgage.

Foreclosure is the right that a mortgage holder or third party lien holder has to seize your property when you default on your payments after a certain period of time. Once they have seized your property, the new owner has the right to sell your property or take ownership of it for their own purposes. In former times, the foreclosure process could happen as soon as the owner defaulted on a payment. Today, the owner is given a certain stipulated period of time to pay back the money they owe before being foreclosed on.

What Can the Mortgage Holder Do With Your Foreclosed Property?

Once the mortgage holder has foreclosed on your property, they are free to do a number of things with it. They can sell it outright and use the money to pay off the remaining amount of the mortgage. They can rent the property out in order to pay off your debt and continue to make a profit thereafter. They can even tear down the property and build a new structure on it which they will then be the owner of.

What Is Foreclosure by Judicial Process?

The foreclosure process can take a number of different forms. For example, the most common type is judicial sale. This means that your property, once foreclosed upon, can be sold by a judicial court. The proceeds of the sale will go first to the mortgage holder, and then to any other persons who may be holding a lien on the property. If there is any remaining amount left over once the sale is concluded, you will get this remainder.

Because this process is a legitimate legal action, it must be tried in a specially appointed court of law. All of the parties involved in the process will be notified of the action and expected to appear at the hearing. After hearing testimony from all sides in the case, the judge will then make a ruling as to whether or not the process will continue to its logical conclusion. This method is available in almost every state and is the most readily available form of the process.

What Does the Power of Sale Process Involve?

Your property can also be foreclosed upon under a process known as power of sale. This involves the sale of your property through some other means than the supervision of a court. This makes the process much quicker and more efficient, although it allows for less preventative action on the part of the original owner. As with judicial sale, the proceeds will first go to the mortgage holder and then to anyone who holds a lien on the property. Should any funds be left over, the original property owner is entitled to them. This method is available in most states.

Are There Any Other Forms of the Foreclosing Process?

The process of foreclosing on property can take a number of other forms. It should be noted that these alternative forms are much less common than judicial sale or power or sale. They will also be rather more limited as to the number of states that will allow recourse to them.

One example is the original method of the foreclosing process, known as the strict process. If you should default on a payment, the court will order you to come up with it by a certain period of time. If you cannot do it, the court awards your property to the mortgage holder, who then has no obligation to sell your property in order to pay off the amount. This method is at the moment only available in Vermont and New Hampshire.

How is the Amount of Money You Owe Officially Determined?

The method by which the amount of money you owe your mortgage holder after defaulting on a mortgage payment is called acceleration. There will almost always be an acceleration clause built into the mortgage that you sign with a bank or some other form of lender. This acceleration clause gives the mortgage holder the right to declare the entire amount of the mortgage due immediately once you have missed a payment. For example, if the amount of the mortgage was $20,000, the acceleration clause gives the mortgage holder the right to insist on receiving the entire amount in one lump sum payment.

What If There Is No Acceleration Clause in the Mortgage?

It should be noted that the concept of acceleration is not governed or enforced by law. In some rare cases, you may be able to sign a mortgage agreement that does not contain an acceleration clause. If this is the case, the mortgage holder can’t foreclose until all of the installments are overdue. They can, however, convince a judge to divide up parts of your property to sell off in order to cover the installments you have missed.